Case Number: BC519574 Hearing Date: May 13, 2014 Dept: 58

JUDGE ROLF M. TREU
DEPARTMENT 58
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Hearing Date: Tuesday, May 13, 2014
Calendar No: 5
Case Name: Gonzalez, et al. v. International Pita Bread, Inc.
Case No.: BC519574
Motion: Motion for Leave to File a Second Amended Complaint
Moving Party: Plaintiffs Margarita Gonzalez and Gustavo Lavios
Responding Party: Defendant International Pita Bread, Inc.
Notice: OK

Tentative Ruling: Motion for leave to file a Second Amended Complaint is denied. Any re-application requesting same relief to comply with CCP 1008
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Background –
On 8/27/13, Plaintiffs Margarita Gonzalez and Gustavo Lavios filed this action against Defendant International Pita Bread, Inc. asserting various wage and hour claims, FEHA discrimination, CFRA violations, and related claims. On 1/30/14, in response but prior to the hearing on a demurrer filed by Defendant, Plaintiffs filed a First Amended Complaint. The FAC asserts causes of action for (1) failure to pay regular, overtime, and double-time wages; (2) failure to provide rest periods, (3) failure to provide meal periods, (4) waiting time penalties, (5) unjust enrichment, (6) unfair competition, and (7) wrongful constructive discharge in violation of public policy (asserted by Gonzalez only). On 4/11/14, Plaintiffs filed a motion for leave to file a Second Amended Complaint. On 5/7/14, Defendant filed an answer to the FAC.

Motion for Leave to File a Second Amended Complaint –
Plaintiffs seek leave to add class action allegations for the wage and hour claims and to add a cause of action for wage statement violations (Labor Code § 226). Moon Decl. ¶ 9; see also id. ¶ 4, Ex. A. The proposed SAC also includes a demand for a jury trial and excludes the 7th COA for wrongful discharge. Id. ¶¶ 9-10.

“In furtherance of justice,” the Court may permit amendment of any pleading on such terms as may be proper. See CCP §§ 473(a), 576. While the Court has discretion to permit or deny amendment of a complaint, denial of leave to amend is rare. Armenta ex rel. City of Burbank v. Mueller Co. (2006) 142 Cal.App.4th 636, 642. The Court may deny leave to amend after long, inexcusable delay, where there is prejudice, such as where new issues would require further discovery. Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761. Absent prejudice, delay alone is not sufficient to deny leave to amend. See Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564-65.

1. Jury Trial and Dismissal of the 7th COA
Preliminarily, the Court notes that this motion for leave does not apply to the demand for a jury trial and the dismissal of the 7th COA. Plaintiffs’ right to a jury trial is governed by CCP § 631, and there has been no waiver of the right pursuant to CCP § 631(d). The dismissal of the 7th COA is governed by CCP § 581(c). Therefore, these issues are immaterial to the motion for leave to amend.

2. Opposition
Defendant’s opposition was filed on 4/30/14 and includes a proof of service indicating that it was served by mail and facsimile. Plaintiff’s reply asserts that the facsimile transmission was not attached as indicated by the proof of service (see Opp’n Proof of Service p. 1:25-26) and asserts that the service by mail was untimely.

However, the Court notes that Plaintiffs’ reply is not supported by any competent evidence. No declarations are submitted to dispute the service by facsimile (even though the facsimile transmission was not attached), or to authenticate the attachments to the reply. Additionally, the Court notes that Plaintiffs’ reply was served by mail, which fails to comply with CCP § 1005(c); and that Plaintiffs’ reply was filed on 5/7/14, which is untimely pursuant to CCP § 1005(b).

Under these circumstances, the Court will consider both the opposition and the reply; however, the Court admonishes both parties to comply with law and motion requirements.

3. CRC 3.1324(b)
Defendant’s opposition argues that Plaintiffs’ motion fails to comply with CRC 3.1324(b). Plaintiffs’ counsel’s declaration only asserts that a stipulation for leave to amend was sought (Moon Decl. ¶ 11) and that the amendments are necessary and will not cause prejudice (id. ¶ 12). There is no explanation as to why the class allegations are necessary and proper, when the facts giving rise to the class allegations were discovered, and why the request for amendment was not made earlier. CRC 3.1324(b)(2)-(4). Plaintiffs’ reply assertion that the amendments arise out of recently associated counsel’s discovery of facts giving rise to the class action allegations (Reply p. 2:1-7) is not supported by competent evidence. The motion is denied. Any re-application for the same relief to comply with CCP 1008.